The defendants have based their motion for summary judgment on several grounds. These include: (1) that the plaintiffs have not alleged a liberty or property interest sufficient to trigger the due process protections of the fourteenth amendment; (2) that the plaintiffs have failed to allege a cause of action under the first amendment; (3) that the plaintiffs have failed to allege sufficient grounds for their attack on defendant Gable's appointment as Chief of Police, and, in addition, lack of standing to assert such a claim; (4) that defendant Daddona acted in good faith relative to the instant demotions and that such good faith requires dismissal of the claim; and (5) that the plaintiffs should have exhausted administrative remedies prior to filing a civil rights action. Each charge will be addressed in turn.

THE DUE PROCESS CLAIM

Plaintiffs assert that the demotions constituted a taking of property in violation of the fourteenth amendment. The fourteenth amendment prohibits state deprivations of life, liberty, or property without due process of law. In order to invoke the protections of the fourteenth amendment, it must first be decided whether the asserted individual interests are encompassed within "life, liberty or pursuit of happiness." Robb v. City of Philadelphia, 733 F.2d 286, 292 (3d Cir. 1984). Property interests are not created by the Constitution per se, but rather "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). The sufficiency of the claim of entitlement must therefore be decided by reference to state law. Bishop v. Wood, 426 U.S. 341, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976).

This statute has been interpreted as conferring upon the Mayor the right to promote and demote. Petrillo v. City of Farrell, 345 Pa. 518, 29 A.2d 84 (1942). In Petrillo, a police captain was demoted to the rank of patrolman without a hearing. In interpreting the Third Class City Code, the court held that the appointing authority had the power to demote police chiefs and officers to a lower rank provided that the person so demoted was kept on as a member of the force.
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In reaching this conclusion, the court recognized that the Civil Service provisions of the Third Class City Code gave the plaintiff a protected status as a patrolman, but created no right in any rank above that position. This protected status was conferred by 53 Pa. Cons. Stat. Ann. § 37001 which provides that "no member of the city police force having been promoted in conformity with the civil service provisions of this act shall be demoted in rank . . . except upon proper cause shown as set forth under the civil service provisions of this Act." Since Petrillo took a civil service examination only to acquire his position as a patrolman, and no other civil service provision governed appointment to higher ranks, he could be demoted without a hearing as long as he retained his status as a patrolman.

The Petrillo decision was followed by Sweeny v. Johns, 33 Pa. Commw. 209, 380 A.2d 504 (1977).
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The plaintiff was a patrolman who was reduced in rank for purely discretionary reasons. The court interpreted the statute as extending to the mayor the sole power to designate the chief of police and other officers, and to demote the chief and other officers without cause, and without a hearing or other civil service protection.

Plaintiffs argue that 53 Pa. Cons. Stat. Ann. § 37002 by its terms gives the mayor the right to demote only the chief of police. Because the statute is silent as to the mayor's power to demote other officers, the plaintiffs argue that police officers cannot be dismissed without cause. This argument is not persuasive in light of the case law and a reading of the statute itself. If the mayor can demote the chief of police without cause, it clearly follows that he can demote other police officers of lower rank without cause so long as their protected status as patrolmen under the civil service provisions is respected.

The plaintiffs first assert that a property right protectable under the due process clause exists when an employee's position is protected by a "just cause" provision in his or her employment relationship. They rely on 53 Pa. Cons. Stat. Ann. § 37001, which provides that no member of the city police force who is promoted in conformity with the civil service provisions of the Act can be demoted except upon proper cause shown as set forth under the Civil Service Act. In Abraham v. Pekarski, 537 F. Supp. 858 (E.D. Pa. 1982), Judge Becker concluded that an employee who cannot be dismissed except upon a showing of just cause has a property right based upon Local Agency Law, 2 Pa. Cons. Stat. Ann. §§ 501-508 (Purdons Supp. 1984). Plaintiffs argue that this decision taken in conjunction with § 37001 creates a sufficient entitlement in the rank of detective so as to afford them due process protection.

This argument is without merit. Promotions to the rank of detective are not made in conformance with the civil service provisions of the Third Class City Code. Since promotions are not made through civil service procedures, demotions do not have to be made in conformance with the Civil Service Act. Abraham does not control as the court in that case was construing a Township Ordinance which contained a "just cause" provision governing all township employees. In the present case, there is no such explicit ordinance and the Third Class City Code allows the mayor to demote the chief of police and other officers without cause. Petrillo. Furthermore, the local agency law, upon which the property right in Abraham rested, is superseded by the Third Class City Code in matters concerning personnel and administrative policies. Greenberg v. Bradford, 432 Pa. 611, 614, 248 A.2d 51 (1968).
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I cannot accept this argument. Nowhere in the contract is it specifically stated that issues involving demotions are subject to the grievance and arbitration machinery. Only disputes "arising under this contract" or "involving the interpretation or application of this agreement" are subject to arbitration. Demotions of police officers are not governed by the labor contract but by statute, and are therefore not subject to the grievance machinery of the contract. Thus, no express written entitlement has been created through the inclusion of grievance and arbitration provisions in the collective bargaining agreement.

To accept plaintiffs' line of reasoning would mean that by entering into a collective bargaining agreement containing a grievance-arbitration provision, a local government entity would effectively repeal that aspect of the Third Class City Code vesting the mayor with the authority to promote or demote police officers. I find that this result flies in the face of logic and would result in localities being able to repeal acts of the Pennsylvania legislature at their whim. I refuse to accept this result.
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The Supreme Court has often emphasized that the concept of liberty for due process purposes should be given a broad interpretation. Roth at 570; See also Bolling v. Sharpe, 347 U.S. 497, 499-500, 98 L. Ed. 884, 74 S. Ct. 693 (1954); Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972). In Roth, however, the Court refused to find that the state's failure to rehire the plaintiff implicated his liberty interests. Id. 408 U.S. at 573. The Court recognized that liberty interests might be implicated in some termination cases, but found that the state's failure to rehire the plaintiff, a professor of political science at a state university, did not involve charges that might "seriously damage his standing and association in the community" nor impose on him a "stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities." Id. "Stigma to reputation alone, absent some accompanying deprivation of present or future employment is not a liberty interest protected by the Fourteenth Amendment." Robb v. City of Philadelphia, 733 F.2d 286, 294 (3d Cir. 1984) citing Roth, 408 U.S. at 574.

Plaintiffs' attempt to implicate the liberty interest protected by the due process clause must fail because they cannot demonstrate that they have been deprived of present or future employment or that the charges leveled against them have seriously damaged their standing in the community. Plaintiffs were demoted, not fired, and are not foreclosed from taking advantage of other employment opportunities. Allegations that they were demoted for being part of a "clique" that undermined morale and efficiency are not equivalent to a charge of "dishonesty or immorality" that would justify the right to a hearing. Roth, 408 U.S. at 574.

I therefore find that no liberty interest was implicated by the demotions of the plaintiffs under the fourteenth amendment and they are not entitled to a hearing on this ground.

To summarize, plaintiffs have failed to establish that a genuine issue of material fact exists with regard to their due process claims. Since they have failed to demonstrate that they had a protectable property or liberty interest in the rank of detective under the fourteenth amendment, they had no right to a pre-demotion hearing. I therefore grant defendants' motion for summary judgment on this issue.

FIRST AMENDMENT CLAIM

Plaintiffs assert that they were demoted for political reasons in violation of the first amendment rights. It is well settled that a state may not condition "hiring or discharge of an employee in a way which infringes on his right of political association." Keyishian v. Board of Regents, 385 U.S. 589, 17 L. Ed. 2d 629, 87 S. Ct. 675 (1967); Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976). Defendants, however, argue that there is no authority holding that a demotion for political reasons, unlike a dismissal, rises to the level of a first amendment violation. Secondly, defendants assert that they have articulated legitimate reasons for the demotion of each plaintiff thereby justifying the demotions under the applicable standard.

For the reasons which follow, I will reject defendants' first argument as a matter of law. I also find that a genuine issue of material fact exists as to whether plaintiffs were demoted for political reasons. Defendants' motion is therefore denied.

The defendants argue that violations of the first amendment violations should be found only in situations in which a party has been discharged because of his or her political belief or association. Such a narrow interpretation of first amendment protection is not acceptable. "Political belief and association constitute the core of the activities protected by the First Amendment." Elrod v. Burns, 427 U.S. 347, 356, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976). As Justice Brennan emphasized in Elrod, "Regardless of the nature of the inducement, whether it be by denial of public employment or, as in Board of Education v. Barnette, 319 U.S. 624, 87 L. Ed. 1628, 63 S. Ct. 1178 (1943), by the influence of a teacher over students . . ." these beliefs should be protected. Id. 427 U.S. at 356. The Elrod opinion also discusses the impact of patronage dismissals on first amendment rights, noting that these had the effect of imposing an "unconstitutional condition on the receipt of a public benefit" thereby implicating the rule of cases like Perry v. Sindermann, Id. at 358-59.

In Perry, the Supreme Court emphasized that even though a person had no right to a valuable governmental benefit, the government could not deny a benefit to a person because of his constitutionally protected interests, especially his interest in freedom of speech. Perry, 408 U.S. at 593. The Court explained its position as follows:

For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to "produce a result which [it] could not produce directly." Speiser v. Randall, 357 U.S. 513, 526 [2 L. Ed. 2d 1460, 78 S. Ct. 1332]. Such interference with constitutional rights is impermissible. Id. at 593.

It is clear from a reading of these cases that the rationale underlying the rule forbidding dismissal of a non-policymaking public employee on patronage grounds extends to the situation where such an employee is demoted for his political belief and association. Such an action constitutes denial of a benefit because of the exercise of a person's constitutionally protected rights. The plaintiffs' demotions to patrolmen, with loss of rank, a reduction in salary, and loss of prestige and responsibility certainly constitutes loss of a benefit.
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Furthermore, the Third Circuit recently sanctioned such an interpretation of the first amendment in holding that an employer's action in transferring and refusing a promotion to an employee was sufficient to trigger a first amendment claim. Robb v. City of Philadelphia, 733 F.2d 286, 295 (3d Cir. 1984). Plaintiffs are not, therefore, precluded as a matter of law from asserting a first amendment violation because they were only demoted and not dismissed.

Plaintiffs contend that they were demoted for political reasons. They have submitted various affidavits supporting their contention. In their affidavits, plaintiffs cite specific incidents and statements to support their position. Included in these affidavits are their version of conversations each had with defendant Gable after learning of their dismissals; statements made by other individuals involved with, or with knowledge of the realignment in the police department, and information in support of their position that the promotions made during the realignment were also politically motivated.

Defendants contend that the demotions of Bennis and MacLean were made to break up a "clique" that was adversely affecting morale and efficiency in the police department. They rely for support on the depositions of defendants Gable and Daddona, who both deny that the demotions were politically motivated. In his deposition, Daddona alleges that the "clique" was involved in such undesirable activities as "beating up on others," "spying on other police officers," and "doing things that other police officers either can't do or shouldn't do." Deposition of J. Daddona at 20-24. Daddona was unable to recall any specific incidents in support of his allegations. Gable alleges that they were involved in "intimidating other officers," "spying on other policemen," and that they had "free reign to do pretty much what they pleased." Deposition of C. Gable at 26, 50-51. Gable was also unable to link the plaintiffs with specific incidences of misconduct.

I find that a genuine issue of material fact exists with regard to the specifics of plaintiffs' claim. On a motion for summary judgment, the facts should be interpreted in a light most favorable to the non-moving party. Defendants have not, by their presentation, dispelled the possibility that the demotions were politically motivated. Plaintiffs and defendants have presented two equally plausible accounts of the causes of the demotions and the issue should therefore be submitted to a jury for resolution.

IMMUNITY

I have concluded that plaintiffs have stated a valid claim under the first amendment and that genuine issues of material fact exist with regard to that claim. Defendants, however, argue that the defense of good faith immunity should absolve them of any liability if plaintiffs' claims were found to have merit. They assert that under Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982), officials are shielded from liability for civil damages insofar as their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person might know." Id. at 818. Thus, even defendants who violate the constitutional rights of others enjoy a qualified immunity that protects them from liability for damages unless it is found that their conduct was unreasonable under the applicable standard. Davis v. Scherer, 468 U.S. 183, 104 S. Ct. 3012, 82 L. Ed. 2d 139 (1984). Defendants rely on Harlow and Davis to argue that the applicable law was either unclear or in their favor at the time of the demotions. They claim the law was unclear because of Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983), which they read as giving the defendants the authority to move promptly to deal with employees who are disruptive. They argue that Connick gives them great discretion in dealing with employees, and because they had legitimate business reasons for taking the actions they did, they should be immune from damages.

I must reject this argument for several reasons. In no way can it be said that the Connick opinion compromises the constitutional protection afforded freedom of speech and association. Indeed, the Court reasserted the primacy of such a policy and allowed dismissal of the disruptive employee because the controversy centered on activity pertaining solely to internal office policy. Furthermore, defendants cannot possibly assert that they were not aware of the protection afforded by the first amendment.
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Moreover, even if, as defendants claim, they believed that they had a right to dismiss plaintiffs for political reasons under Connick and 53 Pa. Cons. Stat. Ann. § 37002, the defense of good faith immunity would be available in this situation on a motion for summary judgment only when the record establishes that no material issue of fact exists as to whether a defendant acted in good faith. Detz v. Hoover, 539 F. Supp. 532, 534 (E.D. Pa. 1982). I believe that plaintiffs' assertions of malice on Daddona's part raise such genuine issues of fact.

EXHAUSTION

Defendants also assert that plaintiffs in civil rights actions must exhaust administrative remedies before pursuing their claim in federal court. It has been held that the availability of state remedies will defeat a civil rights claim, but this has been limited to actions based solely upon procedural due process claims where there is no allegation of any other constitutional violation. See e.g., Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981); Cohen v. City of Philadelphia, 736 F.2d 81 (3d Cir. 1984), cert. denied, 469 U.S. 1019, 53 U.S.L.W. 3365, 83 L. Ed. 2d 360, 105 S. Ct. 434 (1984).
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Once another constitutional right is implicated, as first amendment rights are in this case, a plaintiff may bring a civil rights action in federal court.
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